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CASE NO.: Appeal (crl.)  176 of 2008

PETITIONER: Sachin Jana and Anr

RESPONDENT: State of West Bengal

DATE OF JUDGMENT: 25/01/2008

BENCH: Dr. ARIJIT PASAYAT & P. SATHASIVAM

JUDGMENT: J U D G M E N T (Arising out of SLP (Crl.) No.4664 of 2007)

Dr. ARIJIT PASAYAT, J.

1.      Leave granted.

2.    Challenge in this appeal is to the judgment of the Division  Bench of Calcutta High Court which confirmed conviction of  the appellants while directing acquittal of twelve co-accused  persons. Originally, 20 persons including the present  appellants faced trial for offence punishable under Sections  148, 323, 324 and 307 read with Section 149 of the Indian  Penal Code, 1860 (in short \021IPC\022). After recording evidence the  Trial Court acquitted six persons under Section 232 of the  Code of Criminal Procedure, 1973 (in short \021Cr.P.C.\022) and the  rest 14 were convicted.   

3.      Prosecution version in a nutshell is as follows:         First information report was lodged by one Hrishikesh  Jana on 17.1.1992, stating that on 17.1.1992 in the morning  when said Hrishikesh Jana was busy in the field for  cultivation of his land, the appellants under the leadership of  appellant Sachin Jana forming an unlawful assembly and  being armed with different weapons like bombs, sticks, knives,  iron rods and bottle of acid threatened Hrishikesh Jana with  dire consequences and when Hrishikesh Jana did not oblige  them by leaving the work of cultivation, the accused persons  started assaulting him with blows, kicks, iron rods etc. and  acid was also poured on his face and body. Hrishikesh Jana  alleged in his written complaint that the appellants also  poured acid on one Amulya Giri and Kartick Maity and also  assaulted one Sabitri Giri who came forward to save  Hrishikesh Jana.  After completion of investigation charge  sheet was filed.  Accused persons pleaded false implication.                           4.      In order to further its version the prosecution examined  11 witnesses including the informant Hrishikesh Jana and  injured persons Amulya Giri, Kalipada Maity. The accused  persons examined three persons to contend that the  prosecution was not projecting the correct scenario.  The Trial  Court after considering the evidence came to the conclusion  that on 17th January, 1992 Sachin Jana and remaining  appellants, after forming an unlawful assembly assaulted him  when Amulya (PW2), Kartick (PW3) and Sachin came to rescue  Hrishikesh. The accused persons shared common intention  and also poured acid on the person of Amulya and assaulted.         

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5.      Fourteen persons were found guilty of offence punishable  under Section 307 IPC and each was sentenced to ten years  imprisonment and fine of Rs.2,000/- with default stipulation.   Different sentences were also imposed for the other offences. 6.      The Trial Court primarily relied on the evidence of PWs.  1, 2 and 3 who were claimed to be victims of acid pouring. The  High Court in appeal found that the evidence of PWs. 1, 2 and  3 clearly established the guilt of the appellants, but was not  sufficient to convict the 12 co-accused persons. Accordingly,  the appeal so far it relates to the present appellants was  dismissed. But the conviction was altered to Section 307/34  IPC.          7.      In support of the appeal, learned counsel for the  appellants submitted that the case was one of false  implication. In any event, offence under Section 307 IPC is not  made out and the sentence as imposed is clearly excessive.           8.      It is also submitted that Section 34 IPC has no  application.   

9.      It is to be noted that three persons suffered injuries on  account of acid poured on them.  The doctor had indicated  that each of the injured persons suffered more than 50% burn  injury which was caused due to acid and the same was  sufficient to cause death if not attended by medical aid at  appropriate time.        

10.     Section 34 has been enacted on the principle of joint  liability in the doing of a criminal act. The section is only a  rule of evidence and does not create a substantive offence. The  distinctive feature of the section is the element of participation  in action. The liability of one person for an offence committed  by another in the course of criminal act perpetrated by several  persons arises under Section 34 if such criminal act is done in  furtherance of a common intention of the persons who join in  committing the crime. Direct proof of common intention is  seldom available and, therefore, such intention can only be  inferred from the circumstances appearing from the proved  facts of the case and the proved circumstances. In order to  bring home the charge of common intention, the prosecution  has to establish by evidence, whether direct or circumstantial,  that there was plan or meeting of minds of all the accused  persons to commit the offence for which they are charged with  the aid of Section 34, be it pre-arranged or on the spur of the  moment; but it must necessarily be before the commission of  the crime. The true concept of the section is that if two or  more persons intentionally do an act jointly, the position in  law is just the same as if each of them has done it individually  by himself. As observed in Ashok Kumar v. State of Punjab  (1977 1 SCC 746) the existence of a common intention  amongst the participants in a crime is the essential element  for application of this section. It is not necessary that the acts  of the several persons charged with commission of an offence  jointly must be the same or identically similar. The acts may  be different in character, but must have been actuated by one  and the same common intention in order to attract the  provision.  11. The section does not say \023the common intentions of all\024,  nor does it say \023an intention common to all\024. Under the  provisions of Section 34 the essence of the liability is to be  found in the existence of a common intention animating the  accused leading to the doing of a criminal act in furtherance of  such intention. As a result of the application of principles  enunciated in Section 34, when an accused is convicted under

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Section 302 read with Section 34, in law it means that the  accused is liable for the act which caused death of the  deceased in the same manner as if it was done by him alone.  The provision is intended to meet a case in which it may be  difficult to distinguish between acts of individual members of a  party who act in furtherance of the common intention of all or  to prove exactly what part was taken by each of them. As was  observed in Chinta Pulla Reddy v. State of A.P. (1993 Supp. (3)  134) Section 34 is applicable even if no injury has been caused  by the particular accused himself. For applying Section 34 it is  not necessary to show some overt act on the part of the  accused.  12.     The above position was highlighted in Girija Shankar vs.  State of U.P. (2004 (4) SCC 793). 13. Section 307 IPC reads:  \023307. Whoever does any act with such  intention or knowledge, and under such  circumstances that, if he by that act caused  death, he would be guilty of murder, shall be  punished with imprisonment of either  description for a term which may extend to ten  years, and shall also be liable to fine; and if  hurt is caused to any person by such act, the  offender shall be liable either to imprisonment  for life, or to such punishment as is  hereinbefore mentioned.\024   To justify a conviction under this section, it is not essential  that bodily injury capable of causing death should have been  inflicted. Although the nature of injury actually caused may  often give considerable assistance in coming to a finding as to  the intention of the accused, such intention may also be  deduced from other circumstances, and may even, in some  cases, be ascertained without any reference at all to actual  wounds. The section makes a distinction between an act of the  accused and its result, if any. Such an act may not be  attended by any result so far as the person assaulted is  concerned, but still there may be cases in which the culprit  would be liable under this section. It is not necessary that the  injury actually caused to the victim of the assault should be  sufficient under ordinary circumstances to cause the death of  the person assaulted. What the court has to see is whether the  act, irrespective of its result, was done with the intention or  knowledge and under circumstances mentioned in the section.  An attempt in order to be criminal need not be the penultimate  act. It is sufficient in law, if there is present an intent coupled  with some overt act in execution thereof.  14. This position was highlighted in State of Maharashtra v.  Balram Bama Patil (1983 (2) SCC 28). 15.     When the evidence on record is analysed, it is clear that  Section 307 read with Section 34 IPC has clear application.   The acid burns caused disfigurement.  

16.     Considering the nature of dispute the custodial sentence  is reduced to 5 years.  However, each of the appellants is  directed to pay a fine of Rs.25,000/-. If the amount is  deposited by the appellants within six weeks from today, out of  each deposit, Rs.10,000/- shall be paid to each of the victims  PWs. 1, 2 and 3. In case the amount of fine imposed is not  deposited, the default custodial sentence of one year each.         

17.     The appeal is disposed of accordingly.